By Helena Adeloju
A controversial ‘best interest’ ruling handed down by the Court of Protection in the United Kingdom last month, would have forced an intellectually disabled woman to have her pregnancy terminated. However, following a legal challenge by the woman’s mother and heavy criticism in the media, the ruling was swiftly overturned on appeal.
Watching this case play out in the courts and in media reports and commentary, sparked my interest in the current situation for intellectually disabled women in Australia.
It would seem reasonable to expect that since Australia is a signatory to several United Nations conventions, there would be a high standard of protection for the rights of women and girls with intellectual disabilities. The conventions include the Convention on the Rights of Persons with Disabilities, the Convention on the Elimination of all forms of Discrimination Against Women, the Convention on the Rights of the Child, the International Covenant on Economic, Social and Cultural Rights and the Universal Declaration of Human Rights.
However, according to last year’s review by the United Nation’s Committee on the Elimination of Discrimination against Women, the standard in Australia is anything but golden. The review found that Australia is in breach of several international obligations including “non-consensual administration of contraceptives to, performance of abortions on and sterilization of women with disabilities.” The Committee described these practices as “harmful,” and recommended Australian governments take action to “abolish” them. They also urged the development and enforcement of strict guidelines on the sexual and reproductive health rights of women and girls with disabilities who are unable to consent.
Since 2005, six out of the seven UN committees which have reviewed Australia’s implementation of the treaties it has signed, have called on Australian Governments to legislate to protect the rights of disabled women.
Regrettably, the available data is not robust regarding non-consensual administration of contraceptives and involuntary abortion, and although there is some data regarding sterilisation practices, they are not considered reliable.
In a 2013 submission to the Federal Senate Community Affairs References Committee on Involuntary or coerced sterilisation of people with a disability in Australia, the Office of the Public Advocate (Victoria) which acts to safeguard the rights and interests of people with disabilities, admitted that there is an absence of good data as a result of a “complex and under resourced medical system,” and as a result “valid, reliable and consistent categorisation of procedures and persons are absent, compromising assessment of the numbers of procedures that are occurring without authorisation.”
In 2013, the Federal Senate Community Affairs References Committee report on Involuntary or coerced sterilisation of people with a disability in Australia detailed recommendations to legally prohibit sterilisation where a person with a disability has the capacity to consent and has not given that consent. Other recommendations largely centred around ensuring a more consistent approach to the regulation of sterilisation, including data collection.
The Federal Government’s response to this report also reiterated the issue of inconsistency of data, describing it as a “concern.” The report recognised that State and Commonwealth Governments need to work together by making money available through the Attorney-General’s Department to develop indicators to standardise the collection of data across jurisdictions.
However, the protection of women and girls with intellectual disabilities will take more than standardised regulations and improved data collection. What is needed is a thorough investigation of current practices.
According to Cashelle Dunn, author of Sterilisation of Girls with a Disability; The State Responsibility to Protect Human Rights (2018) for Women With a Disability Australia:
“It is widely known that girls with disability are non-therapeutically sterilised under the guise of a 'therapeutic surgery'. This is illegal, but is not actively investigated, so no data on the prevalence has been collected. Likewise, parents are known to take their daughters overseas to have the procedure. There is no available data on this either, but it is legal. This is dangerous as girls can be legally taken to procure the operation in countries with even fewer safeguards.”
This is the crux of the problem, not only with sterilisation of intellectually disabled women, but regarding contraception and abortion as well. It is the reason the UN continues to find Australia in breach of its international legal obligations.
The only way forward is for State and Territory governments as well as the Commonwealth to work together to thoroughly investigate current practices, to comprehensively legislate in this area and to rigorously enforce such legislation. As Ms Dunn notes, Australia must also “actively work to create effective support services and programs to replace the ‘quick fix’ of sterilisation.”
Protection of the bodily integrity and human rights of intellectually disabled women and girls needs to be made an urgent priority, rather than allowing the current deficient measures to continue to fail them.
Helena Adeloju is a journalist and a freelance writer from Melbourne.
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